U.S. v. Hasan

• Citation: 586 F.3d 161
• Decision Date: 10 November 2009
• Docket Number: Docket No. 08-4921-cr.
• Parties: UNITED STATES of America, Appellee, v. Syed HASAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

586 F.3d 161

UNITED STATES of America, Appellee, v. Syed HASAN, Defendant-Appellant.

Docket No. 08-4921-cr.

United States Court of Appeals, Second Circuit.

Argued: October 6, 2009.

Decided: November 10, 2009.

B. Alan Seidler, New York, NY, for Defendant-Appellant.

Daniel A. Spector, Assistant United States Attorney (Benton J. Campbell, United States Attorney for the Eastern District of New York, and Jo Ann M. Navickas, Assistant United States Attorney, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: CABRANES and SACK, Circuit Judges, and RAKOFF, District Judge.^*

JOSÉ A. CABRANES, Circuit Judge:

Defendant Syed Hasan ("defendant" or "Hasan") appeals from an October 3, 2008 judgment of the United States District Court for the Eastern District of New York (Sandra L. Townes, Judge) convicting him, after a jury trial, of various crimes. Specifically, Hasan was convicted of one count each of making a false statement on a passport application, in violation of 18 U.S.C. § 1542,¹ conspiracy to commit kidnapping, in violation of 18 U.S.C. § 371,² and international parental kidnapping, in violation of 18 U.S.C. § 1204(a).³ Hasan was sentenced principally to fifty-two months' imprisonment. On appeal, Hasan argues that (1) the evidence was insufficient to convict him; (2) the sentence imposed was unreasonable; and (3) he received ineffective assistance of counsel.

BACKGROUND

We present below the relevant evidence presented at trial, viewed in the light most favorable to the government. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Hasan entered into an arranged marriage with Dr. Ayesha Taqueer. Soon after they married, Hasan became verbally and physically abusive. The couple attempted to resolve their problems, and in February 2005, Dr. Taqueer became pregnant. Throughout her pregnancy, however, Hasan continued to be verbally and physically abusive. On October 28, 2005, Dr. Taqueer gave birth to a son, Syed Muzammil Hasan ("Muzammil").

In December 2005, Hasan suggested that he and Dr. Taqueer obtain a passport for Muzammil, so that in the future he could visit relatives in India. At trial, Dr. Taqueer testified that she signed the third page of the passport application but never saw the first two pages, which set forth the mailing address to which the passport would be sent. Importantly, Dr. Taqueer signed the third page of the form three days before Hasan signed the first two pages. Although Dr. Taqueer testified that she believed the passport would be sent to the family home in Brooklyn, Hasan had listed his brother's South Carolina address as Muzammil's residence and mailing address on the first two pages of the application.

On Friday, January 13, 2006, Dr. Taqueer went to the Brooklyn home of Abdul Abuzaid — a neighbor who cared for Muzammil during the week while Dr. Taqueer and Hasan worked — to bring Muzammil home for the weekend. When she arrived at Abuzaid's apartment, Abuzaid informed her that Hasan had taken the child. Hasan and Muzammil, however, were not at the family home. Dr. Taqueer attempted to call Hasan numerous times, but Hasan never answered his phone. He later called from a pay phone to inform Dr. Taqueer that his mother had taken Muzammil to South Carolina to the home of Hasan's brother. Dr. Taqueer demanded that Hasan return Muzammil to her immediately, but Hasan refused. Dr. Taqueer then moved out of the family home and into a friend's apartment, which was also in Brooklyn. Over the next several weeks, Dr. Taqueer repeatedly contacted Hasan and Hasan's family in South Carolina to demand that they return Muzammil, but they refused.

Because Hasan refused to cooperate, Dr. Taqueer hired an attorney, who recommended that she file a petition in Family Court to obtain a court order for the child's return. Upon Dr. Taqueer's informing Hasan that she had retained an attorney, Hasan fled Brooklyn, leaving the family home and his job without notice.

Several weeks later, Hasan informed Dr. Taqueer that his parents had taken Muzammil to India, but he refused to provide contact information. Over the next several months, Dr. Taqueer repeatedly demanded that Hasan return the child to her; he continually refused. Dr. Taqueer offered to travel to India to get Muzammil, but again, Hasan refused. Instead, he insisted that he would never return Muzammil unless Dr. Taqueer reconciled with him and dropped her petition pending in the Family Court. Dr. Taqueer refused these demands.

Beginning in May 2006, Dr. Taqueer sought the assistance of the Federal Bureau of Investigation ("FBI") to find Muzammil. An FBI special agent provided Dr. Taqueer with a recording device and instructed her to record any conversations she had with Hasan. She recorded two such conversations in which Hasan repeatedly refused to return Muzammil and demanded that Dr. Taqueer drop her Family Court petition.

Because Hasan refused to attend the proceedings in Family Court, that court entered a default judgment against him. In July 2006, the Family Court issued an order granting Dr. Taqueer custody of Muzammil and issued a warrant for Hasan's arrest.

Finally, on October 28, 2006, Hasan was arrested in Detroit, Michigan, after he arrived on a flight from India. Hasan was traveling with Muzammil, who was soon reunited with Dr. Taqueer.

Hasan was then tried in the District Court. On November 7, 2007, the jury returned a verdict of guilty on all three counts of the indictment. The District Court then imposed a sentence principally of fifty-two months' imprisonment. Hasan now appeals.

DISCUSSION

On appeal, Hasan argues that (1) the evidence was insufficient to convict him; (2) the sentence imposed was unreasonable; and (3) he received ineffective assistance of counsel. He further contends — albeit in a cursory manner — that he did not have the intent to commit these crimes. We address each argument in turn.

A. Sufficiency of the Evidence

First, Hasan argues that the evidence presented at trial was insufficient to support the jury's guilty verdicts. Specifically, he argues that the evidence was insufficient to conclude, as the jury apparently did, that Dr. Taqueer did not give her permission for Hasan's parents to take Muzammil to India. He further contends that misstating a mailing address on a passport application is not sufficiently material to establish guilt of the offense of making a false statement on a passport application.

Because "the task of choosing among competing, permissible inferences is for the [jury and] not for the reviewing court," United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001), we are required to review the evidence "in the light most favorable to the government," United States v. Gaskin, 364 F.3d 438, 459 (2d Cir.2004), and "resolve all issues of credibility in favor of the jury's verdict," United States v. Desena, 287 F.3d 170, 177 (2d Cir.2002) (internal quotation marks omitted). See generally Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781.

At trial, the government introduced much evidence that Dr. Taqueer had not given permission to Hasan's parents to take Muzammil to India. First, Dr. Taqueer testified that she did not give her consent to Hasan's parents. Furthermore, several emails were admitted into evidence that were written by Hasan and demonstrated that Hasan knew that Dr. Taqueer had filed a petition in Family Court, knew that Dr. Taqueer desired the return of Muzammil, and had control over Muzammil's whereabouts. Hasan did testify that he had Dr. Taqueer's consent to allow his parents to take Muzammil to India, but we "resolve all is issues of credibility in favor of the jury's verdict," Desena, 287 F.3d at 177, and thus we conclude that the jury found Dr. Taqueer's testimony, and not Hasan's testimony, credible.

The government also presented other evidence at trial that supports Hasan's conviction. The evidence, for example, that Hasan signed the first two pages of Muzammil's passport application — the pages that contained the false address — several days after Dr. Taqueer signed the third page of the application undermines Hasan's claim that they filled out the pages together. Similarly, evidence presented at trial that Hasan purchased a one-way ticket to India undermines Hasan's claim that he had only planned a brief trip to India in July 2006 to retrieve Muzammil. Perhaps most importantly, the recorded telephone conversations between Hasan and Dr. Taqueer contradict Hasan's statement that he continually made valiant efforts to return Muzammil to Dr. Taqueer. Taken together, along with other evidence presented at trial, we conclude that there was sufficient evidence at trial to establish that Hasan intended to, and did, commit the kidnapping crimes and thus to support the jury's guilty verdicts. For this reason, we affirm the judgment of the District Court with respect to the convictions for international parental kidnapping and conspiracy to commit kidnapping.

Next, Hasan argues that the evidence was insufficient to support the jury's guilty verdict on the charge of making false statements on a passport application. Specifically, Hasan argues that his use of the incorrect address on Muzammil's passport application cannot support his conviction of this charge because it was not a material misstatement. Whether the statute prohibiting making false statements on a passport application, 18 U.S.C. § 1542, contains a materiality requirement is a question of first impression in this Circuit.

When construing a federal statute, we begin with the text of that statute. See, e.g., United States v. Kozeny, 541 F.3d 166, 171 (2d Cir.2008) (quoting United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). "Where the statute's language is plain, the sole function of the courts is to enforce it according to its terms." Id. (internal quotation marks omitted) (qu...